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Round Midnight

As Bill Clinton prepared to leave office and public attention swiveled toward the incoming administration, the outgoing president spent his last months in the Oval Office making recess appointments and issuing a flurry of new regulations and executive orders. Many of these have been in the works for years but were blocked by the Republican Congress. With very few exceptions, these orders and appointments represented the suppressed liberal aspirations of the Clinton administration.

But will President George W. Bush sit by and allow such aspirations to be realized? He can't simply revoke the measures. As the Supreme Court ruled in 1983 when President Ronald Reagan tried to rescind a postelection auto safety regulation issued by Jimmy Carter, a new administration must go through the usual elaborate rulemaking procedures (with hearings and review) before revising regulations issued by the previous administration. But a new president can undermine new rules by staying their implementation until the completion of a court challenge or by denying the appropriate agency the personnel to enforce them. So Bush could, if he chooses, effectively delay or undo much of Clinton's work of the last few months. How the new president deals with these "midnight regulations" will tell a lot about how conservative or conciliatory his administration will be.

Clinton used his presidential power to make about a hundred of these new rules and appointments in the twilight of his term. Perhaps the most dramatic was an order protecting 60 million acres of wilderness (an area about twice the size of New York State) from road building, logging, and oil drilling. This initiative drew the wrath of oil and timber companies and their allies in the West, who are already seeking to overturn it in court. But there are lesser known, equally significant, rulings and appointments that business lobbies and their Republican cohorts are already trying to block. Let's consider some of them.

The new regulations would remove the single greatest loophole in clean-air rules by severely limiting the emissions from trucks and buses that use diesel fuel. These vehicles currently produce one-fourth of all air pollutants. The new regulations would require vehicle makers to incorporate the latest antipollution technology and would oblige oil refineries to eliminate sulfur from diesel fuel. (A principal cause of soot, sulfur also hampers the ability of catalytic converters to limit emissions, thus making it impossible to control other air pollutants.)

When oil and trucking companies complained last summer that the new restrictions would threaten their survival, the EPA agreed to delay full implementation of the rules until 2010; nevertheless, the lobbies are still determined to kill them. Bush's designated EPA director, Christine Todd Whitman, supported the diesel regulations as governor of smog-ridden New Jersey. But if she is confirmed, she will be under intense pressure from oil industry executives, who will certainly try to enlist the support of their former colleagues Dick Cheney, the new vice president, and Don Evans, Bush's chosen commerce secretary.

Federal Procurement. In July 1999, the Clinton administration proposed a new rule that would clarify the vague and little-used requirement that the government consider whether a potential contractor has a "satisfactory record of integrity and business ethics." The administration said that in rewarding contracts the government should consider whether there was "persuasive evidence" that companies had broken "tax laws, ... labor laws, employment laws, environmental laws, antitrust laws or consumer protection laws."

Businesses formed the National Alliance Against Blacklisting to block the rule. And while the U.S. Chamber of Commerce termed the guideline a "gift to the unions," industry is less concerned about complying with labor laws than with having to pay fines for procurement violations. Over the past five years, defense contractors alone have amassed more than $400 million in fines for violating procurement laws.

Last July the Republican House voted to block any new rule, but on December 20, the Clinton administration issued a final version. It tried to appease the opponents by making violations more specific and by removing a vague requirement to maintain a "skilled, stable and productive workforce," but the lobbyists opposed to the plan are still not satisfied. They plan to file suit and have already begun pressuring the Bush administration to overturn it. Cheney, pharmaceutical executive Mitchell Daniels--Bush's pick for director of the Office of Management and Budget--and Secretary of Defense-designate Donald Rumsfeld will probably make the decision about whether or not to do so.

Workers' Health and Safety. The Clinton administration has been trying since August 1993 to incorporate a standard for musculoskeletal disorders into the enforcement of the Occupational Safety and Health Act. Ergonomic injuries--from carpal tunnel syndrome to tendinitis--have become the most common workplace hazard in the United States. But the Republican Congress has repeatedly blocked the administration's attempt to adopt a new standard. In October, Clinton vetoed the Republican budget because it contained a provision that would have forbidden the administration to issue a new standard.

On November 13, the Labor Department issued the new regulation, which will take effect before Clinton leaves office. Like the rules on diesel fuel and procurement, the new ergonomics standard represents a compromise. To the chagrin of the AFL-CIO, it doesn't cover workers in the construction, maritime, agricultural, and railroad industries, and it merely requires employers to eliminate hazards after accidents have occurred. Still, the business lobbies, led by the U.S. Chamber of Commerce, have already filed suit against it on the absurd grounds that the government did not provide sufficient consultation (after eight years of public hearings!) before issuing the rule. The lobbies are also calling on Congress to use an obscure 1996 statute that allows lawmakers to overturn a regulation within 60 days; it's unlikely, though, that Republicans will be able to muster a majority in the Senate.

Trade. In the spring of 1993, the Clinton administration tried to include tough side agreements on labor rights and environmental protection in the North American Free Trade Agreement. Republicans rebuffed the president, who settled finally for two toothless commissions. Four years later, the administration proposed including environmental and labor protections in a new fast-track agreement, but Republicans again nixed the idea and the administration was forced to remove these provisions.

The administration was divided itself on the issue, with the U.S. trade representative opposed and the White House and the National Economic Council (which assigned a staffer to fashion agreements) in favor. The White House won out, and on October 24, the administration signed a free trade agreement with Jordan that includes labor and environmental guarantees. At this writing, the Clinton administration is negotiating similar treaties with Singapore and Chile that may be completed before Clinton leaves office. In addition, on December 13, Clinton signed an executive order requiring that environmental impact reviews be part of any future trade agreements.

Congress will have to approve the trade agreements, and Bush will have to implement the executive order. Business lobbyists want new free trade agreements, but they are already balking at supporting one that includes provisions on labor and the environment. Predictably, the U.S. Chamber of Commerce called the inclusion of the provisions "a sop to the unions," even though the environmental movement was an even greater winner. It's unclear who in the Bush administration will decide what to do about the environmental order. Bush initially didn't even grant cabinet status to the U.S. trade representative.

Judiciary. The Clinton administration was continually at war with the Republican Senate over federal judicial appointments. It had particular trouble getting black judges confirmed. More than one in three were turned down, compared with fewer than one in six white appointees. The situation was especially grievous in the Fourth Circuit Court of Appeals, which covers North and South Carolina, Virginia, Maryland, and West Virginia, and which has had no black judges in spite of having the largest proportion of minority residents (22 percent) of any of the 11 circuits.

The court has positions for 15 judges, but only 10 slots are now filled. Over the last seven years, Clinton successively appointed three black jurists from North Carolina to judgeships; but each time, Republican Senator Jesse Helms used his prerogatives to prevent the nomination from even coming to the floor for a vote. On December 27, Clinton made a recess appointment to the court: Roger Gregory, a distinguished African-American lawyer from Richmond who enjoys the support of Virginia's Republican Senator John Warner. Under the rules governing presidential appointments made when Congress is not in session, Gregory can serve for a year while the Senate is considering his appointment.

Gregory's nomination has outraged some conservatives. Thomas Jipping, the director of the inaptly named Center for Law and Democracy, called it "an obscene gesture." The Senate vote on the Gregory confirmation will be a good test of the Republicans' commitment to racial equality. And as of mid-January, Democratic senators were gearing up to grill Bush's nominee for attorney general, John Ashcroft--not just about Gregory, but about Missouri State Supreme Court Judge Ronnie White, whose nomination to a federal judgeship Ashcroft torpedoed.

Many of the other appointments and regulations tell the same story--even to the point of absurdity. In 1996, for instance, as part of the Kassebaum-Kennedy health insurance bill, Congress--with Republican support-- directed itself to devise rules within three years for protecting the privacy of medical records. Under pressure from health industry lobbyists, the Republican leadership could not agree on a set of rules. Finally, on December 20, the Clinton administration issued rules of its own. Health industry leaders responded predictably to the popular measure--by announcing their opposition and calling on the Bush administration to rewrite the rules.

Clinton's frenzy of executive activity during his last months in office resolves the questions raised by liberal Democrats about whether he was really on their side. His midnight rules and appointments show that however much he equivocated and triangulated, he was at heart a liberal committed to economic justice, social equality, and the protection of the environment. But Clinton's final days also write a bittersweet conclusion to his presidency. The fact is, he could not get any of these measures adopted by Congress and, moreover, their ultimate disposition now depends on the Bush administration. That is a poignant reminder of how little, not how much, Clinton and the Democrats were able to accomplish in the face of a Republican Congress and powerful business lobbies. ¤